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October 4, 2008

"Rethinking the Federal Role in State Criminal Justice"

The title of this post is the title of this great-looking article from Professors Joe Hoffmann and Nancy King now available on SSRN. Here is the abstract:

This Essay argues that federal habeas review of state criminal cases squanders resources the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners convicted of non-capital crimes, and offers no realistic hope of relief for those who reach federal court. As a means of correcting or deterring constitutional error in non-capital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court's most recent decision applying the Suspension Clause, the authors propose that Congress eliminate federal habeas review of state criminal judgments, except for cases including certain claims of actual innocence, retroactively applicable rules, or the sentence of death. The federal government should leave the review of all other state criminal judgments to the state courts and invest, instead, in a new federal initiative to encourage improved state defense services, an approach that can deter and correct constitutional error more effectively than any amount of habeas litigation ever could.

Simpson and his codefendant, Clarence Stewart, were both convicted on all 12 counts. As the court clerk read "guilty" 24 times shortly before 11 p.m., Simpson grimaced and then nodded slightly, quickly regaining his composure. From the gallery, his sister, Carmelita Durio, wept on a friend's shoulder. Both defendants were handcuffed and taken into custody. Durio's weeping became wailing as marshals escorted Simpson from the courtroom.

The verdicts mean that Simpson, 61, faces a possible life sentence for a six-minute confrontation with two sports memorabilia dealers last year at a down-market casino hotel. Sentencing will be Dec. 5.

Among other issues, it is interesting to speculate whether Simpson should and will have his sentence on these new convictions based on his prior double killing, despite his acquittal on murder charges. After all, a civil jury found Simpson guilty of these killings by a preponderance of the evidence, which is enough to satisfy any due process requirement for enhancing a sentence based on acquitted conduct.

Thus, under existing federal constitutional law, the state judge sentencing Simpson on these new robbery convictions could enhance his sentence based on Simpson's prior killings. Whether he will (either formally or informally) is a different question.

UPDATE: I see that Eugene Volokh covers this fascinating OJ sentencing issue in this new post at The Volokh Conspiracy. I am glad to see that I am not the only one intrigued and bemused by the fact that OJ might receive the short end of modern acquitted conduct sentencing rules.

October 3, 2008

Regular readers may recall some of my recentposts discussing my observations of an extraordinary amount of variation in charging, bargaining and sentencing realities in federal child porn downloading cases. Two more notable examples came across my desk just today:

In US v. Toothman, No. 07-3729 (8th Cir. Oct. 3, 2008) (available here), a panel rejects an Arkansas defendant's appeal of his within-guidline sentence of more than eight years imprisonment following his plea of guilty to one count of knowing receipt of child pornography. The defendant complained on appeal about the district court's failure to give him any break for his extraordinary physical impairment and extreme susceptibility to abuse in prison, but the circuit court decided the sentence was reasonableness.

Meanwhile, in the neighboring state of Tennessee, another child porn defendant got a significant break from the guidelines, due in part to the luck of timing according to this local artice headlined "Student gets sentence cut in half; Prior defendant’s record worse, so judge shows mercy." Here are the details:

A college student turned child pornography viewer saw his sentence cut in half on Thursday, thanks in large part to a bank robber. Adam Joseph Myers, 22, faced a minimum 70-month prison term when he walked into a federal courtroom. He walked out with 36 months and was even allowed by Senior U.S. District Judge Leon Jordan to self-report to prison, a rarity in the federal judicial system.

Jordan told Myers that he had not only attorneys Donald A. Bosch and Ann Short-Bowers to thank for the judge’s leniency but also bank robber Troy Wayne Davis, who had appeared before Jordan just minutes before Myers’ case was called. Davis has been running afoul of the law since he was 12 years old. Myers, on the other hand, had a squeaky clean record and college credits under his belt when he was caught downloading child pornography images using the file-sharing program known as Limewire, Jordan said....

Bosch and Short-Bowers successfully argued that Myers never intended to allow others to view the child pornography he downloaded. “As soon as Mr. Myers began downloading images to his computer, the images could be shared by others,” Jordan noted. “In fact, this is how the (FBI) agent became aware of Mr. Myers. … There is no evidence he intended to share (the images) with anyone. It was just fortuitous that the agent was online in that narrow window of time.”

But while Jordan painted Myers as a one-time viewer of sadistic scenes of child rape who since has convinced evaluators he poses no threat to children, Morris countered that Myers’ computer showed evidence he had at least twice viewed child pornography. He also argued that Jordan’s leniency flew in the face of congressional leaders, who purposely changed the law to increase penalties for child pornography crimes. “A (sentencing) variance would and does disregard congressional policy for imposing stiff sentences on possessors of child pornography,” Morris argued.

I guess federal sentencing for child porn, like comedy, is really a matter of timing.

Friday funnies from the DC Circuit

Though not really a sentencing case, an introductory parargraph of the DC Circuit's work this morning in Hurt v. SSA, No. 06-5339 (DC Cir. Oct. 3, 2008) (available here), does mention the Eighth Amendment. And, more importantly, it provides some levity at the end of a long work week:

An extraordinary number of people, institutions, and inanimate objects have wronged Tyrone Hurt. In just the last couple of years, Hurt has sued the Declaration of Independence, Black’s Law Dictionary, the United Nations, agencies of the District of Columbia and the Federal Government, and various courts and their officers. Hurt has claimed the existence of state supreme courts violates the Eighth Amendment, requested the Secret Service and the President’s Cabinet be declared unconstitutional, and demanded the deportation of a Spanish-speaking government employee. See Hurt v. The Declaration of Independence, No. 07cv0647, 3/30/07 Mem. Op. and Order at 2–4 & n.4–7 (summarizing filings). Nor are the slights Hurt suffered mere glancing blows; he routinely demands trillions of dollars in damages. In the overwhelming majority of these suits, the district court granted Hurt’s application to proceed in forma pauperis (“IFP”) — in other words, without paying any filing fees. In each case, the district court then dismissed Hurt’s suit as meritless.

Somebody needs to explain to this persistent litigant that you need to be appointed as Secretary of the Treasury before you can make a credible request for trillions of dollars from the government.

Californians to vote on major drug sentencing reform on election day

As detailed in this Los Angeles Times article, headlined "Prop. 5 would overhaul sentencing of drug offenders," voters in California next month will have a chance to vote on a proposition that would alter the state's drug sentencing laws. Here are the basics:

In a state that has consistently boosted penalties for criminals, packing California's prisons to bursting, sponsors of the far-reaching Proposition 5 are asking voters in November to go in the opposite direction. The Nonviolent Offender Rehabilitation Act, funded in part by billionaire George Soros, would be "the most ambitious sentencing and prison reform in U.S. history," according to the Drug Policy Alliance Network, a primary sponsor.

By 2010, the measure would commit the state to spending at least $460 million a year, mostly to increase treatment -- and eliminate incarceration -- for those who commit nonviolent crimes involving drugs or fueled by them. Even when drugs aren't involved, the state no longer could seek to return many ex-convicts to prison for low-level parole violations, as occurred nearly 18,000 times last year, or revoke parole for actions that would qualify as misdemeanor crimes. Parole terms for some offenders would decrease from three years to six months. A new prison bureaucracy devoted to rehabilitation would be created. And possession an ounce or less of marijuana would be an infraction, instead of a misdemeanor.

Latest BJS census of correctional facilities

A new report just released by the Bureau of Justice Statistics, titled "Census of State and Federal Correctional Facilities, 2005" provides an accounting of nationwide facilities locking up individuals in the Unites States. The new BJS report is available online at this link, where these highlights are noted:

The number of prisoners held in custody in state and federal correctional facilities increased 10% from 1,305,253 in 2000 to 1,430,208 in 2005.

Between the 2000 and the 2005 censuses, the number of correctional employees rose 3%, resulting in a higher inmate-to-staff ratio in the latter year.

While the stock of minimum security facilities grew by 155 and maximum security facilities rose by 40 between 2000 and 2005, the number of medium security facilities declined by 42.

October 2, 2008

Rooting for crime and punishment to come up in VP debate

As regular readers know, I have been hoping that crime and punishment issues would get more attention during the 2008 campaign. Perhaps because I am an eternal optimist, I have a inkling that tonight's VP debate might get into some crime and justice issues. Senator Biden has a long record on criminal justice issues at the federal level, and Governor Palin likewise has a record on these issues at the local and state level.

Needless to say, I will be rooting hard that Gwen Ifill will ask at least a few crime and justice questions tonight. If she is looking for ideas about what she might ask, lots of possibilities can be found in some of the posts linked below. And, of course, readers are welcome to add their own suggested questions through the comments.

A better example of sex-offense plea deal gender disparity?

I noted here earlier this week a report about a federal sex offense case in which prosecutors allowed a defendant to plead guilty in a way that enabled her to avoid being subject to a 10-year mandatory minimum sentence. I speculated that one reason this plea deal was accepted might have been because the victim was male and the defendant was female, rather than vice-versa.

In part because my gender-based speculation generated lots of interesting comments, here is another gender-bending story worthy of debate. This story, as reported in the Orlando Sentinel and headlined "Teacher accused of having sex with 14-year-old student avoids jail," comes from state court:

A former middle school teacher accused of having sex with a 14-year-old student in her car pleaded no contest to a reduced charge today and was sentenced to five years probation. Jennifer Tarkenton, who has since gotten married and goes by Jennifer Nero, was arrested Nov. 30, shortly after she and the student were discovered in her Ford Focus on a deserted stretch of road near Lake Mary.

A neighbor had called authorities, saying a suspicious vehicle was parked on the road. When a Seminole County deputy arrived, the vehicle was rocking and the windows were fogged up, according to court records. The boy told deputies that he and his teacher had just had sex. He was still wearing a condom, according to court records. Tarkenton also admitted that they had just had sex.

She was charged with two counts of lewd and lascivious battery. Today, after plea negotiations, she pleaded no contest to one count of felony battery. That means she will not have a record as a sex offender.

Tarkenton was a special education teacher at Greenwood Lakes Middle School at the time. She resigned immediately. Today, as part of her plea, she agreed to give up her teaching certificate for life. She also agreed not to live within 500 feet of a school or park, to complete a sex offender treatment program and to stay away from anyone under the age of 18, except for her son.

The story goes on to say that the prosecutors agreed to the deal because of concerns about a threatened suppression motion. But, again I wonder, would this kind of plea deal been as likely if the middle-school teacher was a male having consensual sex with a 14-year-old female student?

Thoughtful and nuanced discussion of procedural reasonableness from Tenth Circuit

The Tenth Circuit issued a lengthy opinion yesterday in US v. Mendoza, No. 07-3181 (10th Cir. Oct. 1, 2008) (available here), that addresses a number of notable procedural issues in the course of rejecting a government appeal of a below-guideline sentence. Here is how the opinion starts:

Although the United States Sentencing Guidelines (“Guidelines”) advise that defendant-appellee Jesus Mendoza receive a minimum of 324 months’ imprisonment for his drug conviction, the district court varied downward and imposed a 240-month sentence. On appeal, the government urges us to vacate and remand for resentencing, arguing that the district court committed procedural error by (1) declining to give specific reasons for the variance, and (2) failing to enter a written statement of reasons as required by 18 U.S.C. § 3553(c)(2). Reviewing only for plain error, we affirm Mendoza’s sentence.

Though a lot could be said about the panel's thoughtful work in Mendoza, I find most interesting and questionable the fact that the government even bothered to appeal the defendant's 20-year federal prison sentence in this case. The panel notes that the government did not complain about the substantive reasonableness of the sentence, but it still decided it was worth the energy and expense to assail the district court's failure to sufficiently document its reasons for giving a 20-year sentence for the defendant's drug conviction.

Of course, I understand why defendants sitting in federal prison regularly appeal sentences on whatever procedural ground they and they lawyers can assert. But I would think federal prosecutors could embrace the old cliche "good enough for government work" when deciding which sentences it ought to appeal. Indeed, since the government ended up losing its appeal here, I wonder if I can make some kind of request for a refund of the (significant?) federal tax dollars that had to be spent litigating these purely procedural issues.

Over at SCOTUSblog, Lyle Denniston puts a final spin on the Supreme Court's rejection of the rehearing petition of Louisiana in the Kennedy child rape case with this post titled "Analysis: The death penalty calculus is unchanged." And How Appealing has helpfully collected all the major media coverage of the conclusion of the Kennedy case here.

As regular readers know, I am a big fan of criminal justice federalism and thus I remain disappointed that the Supreme Court's work in Kennedy now categorically prevents states from ever experimenting in any way with the death penalty for any kinds of child rape offenders. But I am encouraged to discover, as noted in this AP article, at Governor Palin is talking up federalism principles when discussing the work of the Supreme Court and her concerns with Roe v. Wade:

"I think it should be a states issue not a federal government, mandated, mandating yes or no on such an important issue," said Palin.... "I'm in that sense a federalist, where I believe that states should have more say in the laws of their lands and individual areas," she added.

If legal issues arise again in tonight's VP debate, I hope Governor Palin will keep talking up federalism principles. Indeed, given her admitted use of marijuana when she was younger, I would really like to see how she might respond to a question about federalism, Raich and state authority to decriminalize medical marijuana.

October 1, 2008

Interesting amicus brief on post-Booker sentences of probation

As noted here, the Third Circuit a few months ago granted rehearing en banc in US v. Tomko (panel decision blogged here), a case in which a panel members had written at length about reasonableness when reviewing a probation sentence given to a white-collar defendant. I just receive a copy of an amicus brief filed this week by defender groups in Tomko, which I provide for downloading below. Here is how an e-mail described this brief:

This Amicus Brief filed today on behalf of NACDL and the Federal and Community Defenders of the Third Circuit ... address[es] in detail the failure of the Sentencing Commission to comply with statutory mandates relative to probation, as applied in particular to tax and other white collar cases, concluding that under the Supreme Court's recent decisions in Gall and Kimbrough judges should be especially free to reject the guidelines' excessive reliance on imprisonment and instead to grant a great deal more probationary sentences than has been the case in the last 20 years.

Kolber blogging on the comparative nature of punishment

Professor Adam Kolber has this new post at PrawfsBlawg talking about his new article, "The Comparative Nature of Punishment" (previously blogged here). This new post concludes this way:

The bottom line is this: If we seek to punish offenders in proportion to their blameworthiness, we need to sentence them in a manner that takes their baselines into account. If doing so is impossible or too expensive, then we must acknowledge that we are failing to punish offenders proportionally. Importantly, making such an acknowledgment forces retributivists to give up, to a large extent, on a very intuitively appealing notion of proportionality. It also shrinks the divide between retributivists and consequentialists. If I am correct, neither view punishes offenders according to an intuitively appealing concept of proportionality.

In comments to this post, Kolber indicates that he is "not a defender of proportional, retributive punishment," in turn revealing that Kolber's main gaol with his new article is to take down the whole construct of proportional retributive punishment.

Because I have never been quite able to get my mind around any satisfying account of proportional retributive punishment, I think I am a fan of Kolber's overall project. But I have a feeling that some readers of this blog might not share my skepticism of proportional retributive punishment, and thus I wanted to flag again Kolber's on-going work in this interesting punishment theory arena.

As detailed in this official press release, the "Supreme Court of Ohio ruled today that applying 2003 amendments to ... the state's sex offender registration and reporting law to offenders whose crimes took place before the amendments were adopted does not violate prohibitions in the U.S. and Ohio constitutions against ex post facto or retroactive laws."

The Ohio Supreme Court decision in State v. Ferguson, No. 2008-Ohio-4824 (Oct. 1, 2008) (available here), split the state Justices 4-3. The dissent make the notable assertion that amendment to Ohio's sex offender law has changed the constitutional equation:

Although the majority continues to rely on State v. Cook (1998), 83 Ohio St.3d 404, 409, 700 N.E.2d 570, the first case that considered retroactive application of R.C. 2950.09(B), R.C. Chapter 2950 has been amended. The simple registration process and notification procedures are now different [and] R.C. Chapter 2950 has been transformed from remedial to punitive.

Lots of crime, but little punishment, in new SCOTUS grants

As detailed in this post from SCOTUSblog, the Supreme Court today added "ten new cases to its decision docket for the year .... [and of] those ten, seven involved issues of criminal law." But, as this accounting from Lyle Denniston highlights, few of these new SCOTUS criminal law cases involve sentencing issues:

Among the new criminal cases is a test of the scope of the right to a speedy trial for a poor individual who is being represented by a public defender (Vermont v. Brillon, 08-88), a plea for the Court to clarify how federal appeals courts are to handle prosecutors’ violations of plea bargains when the violation was not challenged at the trial (the Court limited the grant in Puckett v. U.S., 07-9712, to one of two issues raised), and a claim that a voluntary confession made after a suspect’s arrest on federal charges but before he appears before a magistrate must be suppressed when there was a delay before that appearance occurs (Corley v. U.S., 07-10441).

Other criminal law issues raised in newly granted cases test the proof required to show an enterprise under the RICO anti-racketeering law – an issue that arises in civil as well as criminal cases under RICO (Boyle v. U.S., 07-1309), the validity of using a damaging statement by a suspect to challenge the testimony he gives on the stand, if he had not waived his lawyer when he made the statement to police (Kansas v. Ventris, 07-1356), and the obligation of a suspect who has a court-appointed lawyer to take further action to prevent police from questioning him without his lawyer on hand (Montejo v. California, 07-1529).

The final criminal case added by the Court is Rivera v. Illinois (07-9995), contending that a conviction cannot stand if the defense counsel sought to exclude a juror by making a peremptory challenge, but the juror was seated anyway. The appeal noted a split among the Circuit Courts on whether the conviction should be overturned automatically, or whether the error of wrongly seating the juror can be excused as “harmless.”

Disappointingly, none of the notable sentencing cases noted in this post were on the cert granted list today. I fear this reality means that they all will end up on the cert denied list likely to be released on Monday. But it is possible that a summary reversal or a grant sometime later are possibilities in these cases.

SCOTUS plays foot(note)sie as it denies rehearing in Kennedy

As I had expected (and had predicted here and elsewhere), the Supreme Court denied Louisiana petition for rehearing in the Kennedy child rape case. Over at Sex Crimes, Corey has this effective post covering this ruling and the footnotes added to the main opinion and the dissent to address the previously overlooked military law that prompted the rehearing petition. In addition, Justices Kennedy and Scalia wrote short opinions about the rehearing decision.

I may comment more on this decision after I get a chance to consume the specifics and do some posting on the other action from the SCOTUS order list today. Tony Mauro has this report on the ruling at The BLT, and SCOTUSblog more on all the action from One First Street today.

More on Justice Alito's climb out of the cert. pool

I just noticed this Legal Times piece by Tony Mauro discussing Justice Samuel Alito notable (and in my view praiseworthy) decision to get out of the cert pool (first discussed here). Here are snippets from the piece:

Former clerks tell us he made the decision at the end of last term, roughly 2 1/2 years after joining the Court. "Justice Alito wants to be helpful to the other justices in identifying, among the thousands of petitions that come in, those that are worthy of the Court's attention," said Jay Jorgensen, a Sidley Austin partner who clerked for Alito on the 3rd U.S. Circuit Court of Appeals and for the late Chief Justice William Rehnquist. "The easier thing to do would be to stay in the pool. I applaud him for doing this." "The time was right," said another Alito clerk who asked for anonymity. "It's not the sort of thing you just step out and do in your first year. But he's become familiar with the system and he decided it was better to stay off."

Alito's change of mind may also have to do with the miniscule role that junior justices like Alito get to play in influencing which petitions get discussed at the Court's private conferences. Before those conferences, the chief justice sends around a memo specifying which among the hundreds or dozens of pending petitions should be placed on the "discuss list" for debate at the conference. Then, in descending order of seniority, other justices get to add their picks to the discuss list. But they rarely do, and by the time it gets down to the lowest in seniority, the conversation is essentially over. Cases not on the discuss list are on the "dead list," which means they won't be discussed -- and won't be granted. With Alito out of the pool, his independent choices for the discuss list may have more clout.

Among the interesting details here is the indication that Justice Alito was out of the pool all summer and the suggestion that he may be trying to have more power in shaping the Court's docket. As regular readers know, I think Justice Alito's considerable hands-on experience with federal criminal justice issues likely plays a role in his jurisprudence and thus likely would also play a role in his efforts to shape the Court's docket.

Especause I know more than a few defendants and lawyers (myself included) who are hoping the Supreme Court takes up more federal criminal justice issues, I am heartened and hopeful about what Justice Alito's important decision to get out of the pool might portend for the Supreme Court's work in the months and years ahead.

A convicted sex offender was put in charge of the children's play area at the weekend Santa Cruz medical marijuana festival. Registered sex offender Patricia Babiana Mince didn't commit a crime and there were no reports of inappropriate behavior, police said. Capt. Steve Clark said it was "just an unfortunate lapse in judgment."...

The 48-year-old Mince, who was in charge of the children's game booths, was convicted in 2000 of molesting a 15-year-old girl and giving the girl methamphetamines. She's listed on the Megan's Law Web site.

September 30, 2008

New BJS data on federal criminal justice realities

A new report just released by the Bureau of Justice Statistics provides a different perspective on federal crime and punishment than is provided by the data produced by the US Sentencing Commission. The new BJS report, titled simply "Federal Justice Statistics, 2005" and available online at this link, provides arrest data and other case-processing information that provides a more complete view of the massive realities of the federal criminal justice system.

Immigration and drug arrests comprised more than half of the 140,200 federal suspects arrested and booked by the U.S. Marshals in 2005, the Justice Department’s Bureau of Justice Statistics (BJS) announced today....

Forty percent of all suspects arrested by the U.S. Marshals Service were arrested in 1 of 5 federal judicial districts along the U.S.-Mexico border, including Arizona, New Mexico, the Southern and Western Districts of Texas, and the Southern District of California. Nearly 1 in 4 (23 percent) of all suspects arrested in 2005 were arrested in the Southern and Western Districts of Texas....

From 1995 to 2005, the likelihood of being prosecuted, convicted, and sentenced to prison increased. Sixty percent of suspects referred to U.S. attorneys were prosecuted in 2005 (from 54 percent in 1995) Ninety percent of defendants charged with a federal violation were convicted (up from 84 percent in 1995) and 79 percent of defendants convicted in 2005 were sentenced to prison (up from 67 percent in 1995). Thirteen percent of the defendants convicted in 2005 were sentenced to probation (down from 24 percent in 1995)....

The U.S. Court of Appeals received 14,644 filings in 2005 — an increase of 44 percent from 1995. About 4 in 10 appeals filed in 2005 were for drug offenses (41 percent), followed by immigration (17 percent), weapons (16 percent) and violent (5 percent) offenses. Appeals filed by immigration offenders increased an average 25 percent per year from 1995 to 2005.

At year-end 2005, 375,600 persons were under some form of federal supervision — 62 percent were in secure confinement, including prison and pretrial detention. Thirty-eight percent were under federal supervision in the community, including pretrial release and post-sentencing supervision.

"Reducing Racial Disparity in the Criminal Justice System"

The Sentencing Project has just published a new edition of "Reducing Racial Disparity in the Criminal Justice System," a comprehensive manual for practitioners and policymakers. The publication provides insight into how racial disparities develop in the criminal justice system, and workable solutions to address and reduce disparities. The manual provides strategies for addressing disparities at each stage of the system, as well as 17 "best practices" illustrating practitioner approaches for enhancing fairness.

"Reducing Racial Disparity in the Criminal Justice System" is a tool for criminal justice practitioners, policymakers, and community organizations seeking to develop constructive approaches to one of the most challenging problems facing the criminal justice system.

When will the latest economic crisis become a criminal justice story?

Traditional economic markets rarely play a direct role in the criminal justice arena (though I believe punishment systems would be much improved if subject to rigorous cost/benefit analysis). But dramatic economic realities always become a criminal justice story in some indirect way, sometimes through crime-and-justice budget cuts in tough times (or excessive spending in good times), sometimes through increases in certain types of crimes because of market realities.

Consequently, I have little doubt that the current credit crunch will become a criminal justice story at some point; the real question is just when and how. On this basic topic, David Zaring over at the Conglomerate asks a fitting question in this new post, "Who Is Going to Jail for All of This?". Here is a snippet:

One of the rules of financial crises is that some business executives end up doing time after they happen. You can ask yourself if the punished executives are chosen through a fair process, whether other executives avoid prosecution for essentially the same conduct, and so on, but... but ex-post white collar tends to be part of the bureaucratic response....

Who is going to be the villain of this crisis, and who should lawyer up? It's pure speculation, but I think AIG is more likely to get Enronized than Lehman, and I suspect that Congress, quite hypocritically, will be baying for a little blood from Fannie and Freddie.

Put another way, this is probably a good time to "buy stock" in any law firm specializing in white-collar defense. Indeed, law students concerned about what the economic crisis could mean for large firm employment might want to sign-up ASAP for any courses offered in White-Collar Crime and/or Federal Criminal Law and Sentencing.

September 29, 2008

Notable plea deal to avoid mandatory minimum in notable sex case

CNN has this report, headlined "Ex-teacher gets 6 years for sex with boy, 13", that caught my eye in part because of the discussion of how a plea deal was struck to avoid the application of a federal mandatory minimum sentencing term. Here are excerpts:

A former teacher who fled to Mexico with a 13-year-old student so she could have sex with him was sentenced Monday to six years in federal prison. Kelsey Peterson was sentenced to six years in federal prison for running off to Mexico with a student.

Kelsey Peterson, 26, had pleaded guilty in July to a charge of transporting a minor across state lines to have sex and avoided a similar charge that would have carried a mandatory 10-year minimum sentence. She will be credited for nearly one year she has served and could get another year off for good behavior, said U.S. Attorney Joe Stecher....

She started having sex with the boy when he was 12 years old and a student at the middle school where she taught in the south-central Nebraska town of Lexington.... Peterson was the boy's sixth-grade math teacher at Lexington Middle School during the 2005-06 school year and then started having sex with him in November 2006, according to court documents.

She and the boy disappeared in October, soon after the school district's superintendent confronted Peterson about allegations of an inappropriate relationship with the boy. Peterson was arrested a week later in Mexico after the boy called his family. The boy was an illegal immigrant at the time but has been granted humanitarian parole by the Department of Homeland Security.

Am I wrong to wonder if the plea deal that allowed Peterson to be sentenced to far less than 10 years' imprisonment would have been offered had the defendant been a man and the victim a 12-year-old girl?

I am pleased to report that, just in time for the election stretch-run, the latest issue of the Federal Sentencing Reporter focused on American criminal justice is now available here on-line. The issue is titled, simply enough, "American Criminal Justice Policy in a 'Change' Election." The full contents of this FSR issue are listed on-line here, and here is just a small sample of what readers can find in the issue:

EDITOR'S OBSERVATIONS

Frank O. Bowman, III,, The Sounds of Silence: American Criminal Justice Policy in Election Year 2008 (available for download below)

ARTICLES BY ELECTED OFFICIALS

Patrick Leahy,Using DNA and Forensic Science to Catch the Guilty and Protect the Innocent

A religious pitch for drug courts

This new paper posted at SSRN, titled "An Argument for Providing Drug Courts in All Alabama Counties Based on Judeo-Christian Ethics," provides a religious pitch for drug courts. Here is the abstract:

A drug court is an alternative process in the criminal justice system for eligible nonviolent drug offenders that focuses on treatment and allows successful defendants to avoid prison time and a criminal record. This article first provides a snap-shot of the availability of drug courts both nationwide and in Alabama and presents two strong arguments supporting the drug court alternative. The first argument summarizes the substantial evidence indicating that the drug court alternative costs taxpayers substantially less money and enhances public safety. The second and even more compelling argument illustrates that the moral principles of Judeo-Christian ethics, which require laws to be compassionate towards the sick and support the reasonable opportunity of each person to reach their potential as well as condemn oppressive laws imposing excessive punishment, compel all Alabamians of faith to insist that political leaders adopt an appropriate plan that implements drug courts on all sixty-seven of the state's counties.

Who sets the priorities of New York City prosecutors?

This new story on CNN allows be to do some cat blogging and also has me wondering if all human-related crimes have been solved and resolved in New York City. The story is headlined "Prosecutors consider retrial in cat-killing case," and here are excerpts:

New York City prosecutors say they're considering a retrial for the former minor league pitcher and actor who killed his girlfriend's cat.

Manhattan jurors deadlocked 11-1 on Friday at the aggravated animal cruelty trial for Joseph Petcka. Petcka says he didn't mean to hurt Norman the cat. He said he overreacted when the cat bit him. The former Mets minor leaguer and "Sex in the City" actor said on NBC's "Today" show he's grateful for the lone juror who believed he didn't act intentionally.

The jury deadlocked Friday, after five days of deliberations.

Prosecutor Leila Kermani portrayed Petcka as "washed up," saying in closing arguments that he had "zero income and no prospects" last year when he became jealous and killed the cat. Petcka, who pitched in the New York Mets' minor league system in 1992, was a "washed-up, never-made-it-to-the-big-leagues athlete" and a "D-minus" actor, she said.

Kermani has told jurors that Petcka brutally killed the neutered and declawed cat after complaining that his girlfriend at the time, Lisa Altobelli, loved the cat more than him. Petcka testified that he was defending himself after the 8-pound orange and white tabby bit his right hand and drew blood.

Since I no longer pay New York City taxes, I suppose I need not care how much public time and taxpayer money has been spent trying to convict a "washed-up" athelete and "D-minus" actor for his feline crime. But, after a juror refused to convict Petcka, do New York City prosecutors to have nothing better to do than go after Petcka again? I am a huge cat-lover, but how just much public time and New York taxpayer money should be spent seeking justice for Norman the cat rather than keeping prosecutors focused on the more than 8,000,000 humans that live in the city?

Another sad account of modern prison conditions

I just received via e-mail a heads-up about a new book titled "Dying Inside: The HIV/AIDS Ward at Limestone Prison." This webpage provides information about the book, including this summary description:

Dying Inside brings the reader face-to-face with the nightmarish conditions inside Limestone Prison's Dorm 16 — the segregated HIV ward. Here, patients chained to beds share their space with insects and vermin in the filthy, drafty rooms, and contagious diseases spread like wildfire through a population with untreated — or poorly managed at best — HIV.

While Dorm 16 is a particularly horrific human rights tragedy, it is also a symptom of a disease afflicting the entire U.S. prison system. In recent decades, prison populations have exploded as Americans made mass incarceration the solution to crime, drugs, and other social problems even as privatization of prison services, especially health care, resulted in an overcrowded, underfunded system in which the most marginalized members of our society slowly wither from what the author calls "lethal abandonment."

This eye-opening account of one prison's failed health-care standards is a wake-up call, asking us to examine how we treat our forgotten citizens and compelling us to rethink the American prison system in this increasingly punitive age.

"Nearly 500 teens serving life terms in Pa. prisons"

The title of this post is the title of this notable article from this morning's Pittsburgh Post-Gazette. Here are some excerpts:

Pennsylvania leads the nation in teen lifers -- prisoners serving life without parole for crimes they committed as minors -- and last week legislators met to examine the issue for the first time.

In a courtroom in Pittsburgh, 18-year-old twins Devon and Jovon Knox faced exactly that fate -- life without parole -- for killing 18-year-old Jehru Donaldson in a botched car-jacking in July 2007, when they were 17. They join the 444 teen lifers currently held in Pennsylvania prisons, which is about a fifth of the nation's total and 110 more than runner-up Louisiana, according to a May 2008 report by Human Rights Watch.

Sen. Stewart Greenleaf, R-Montgomery, who chairs the Senate Judiciary Committee and called the hearing, said he was startled to learn that Pennsylvania held the No. 1 spot and that the United States is the only country in the world that regularly imprisons youths for life. "That got my attention," he said. "I felt a responsibility to look at [the issue] ... which is why we held the hearing."

Some states have considered laws that would reduce mandatory minimum sentences for juveniles or that would eliminate the penalty altogether. Five states and Washington, D.C., prohibit the practice altogether. Last year in Pennsylvania, nine people were sentenced to life for crimes they committed as minors. Today, 10 people in Allegheny County await trial for crimes they committed as minors and could wind up in prison for life. (First- and second-degree murder are the only crimes that result in a minor being sentenced to life in prison.)

The issue has been polarizing, with human rights activists arguing that sentencing a juvenile to life in prison is excessively harsh and some victims advocates arguing that those who commit homicide should spend the rest of their lives in prison, regardless of their age. Still, it's the number -- 444 -- that troubles some. "It could be a commentary on Pennsylvania law ... it could also be a commentary on society," said Judge Kim Berkeley Clark, who heads the county's Family Division and has adjudicated some juvenile homicide cases. "It makes me very sad."

September 28, 2008

Making an economic case against the death penalty

This op-ed from a local paper in Califorinia, headlined "Price isn't right for the death penalty," makes a economic pitch against the use of the death penalty. Here are excerpts:

As the country's economic woes continue to mount, frightening many Americans, it has become clear that the United States simply cannot afford capital punishment. The death penalty is the revenue-guzzling SUV to the cost-efficient hybrid of life without parole. Researchers all over the country are crunching the numbers and coming to the same conclusion — the death penalty is far too expensive.

In its recently released report, the California Commission on the Fair Administration of Justice found that California's current death penalty system costs $137 million annually compared with $11.5 million for a system without the death penalty. The commission also reported that California's system is "dysfunctional" and that it will cost an additional $200 million a year to fix it....

In Maryland, the Urban Institute study of March 2008 noted that it costs the state three times more to try a death penalty case than a non-death penalty case.... A 2004 study in Tennessee said the findings were the same. Capital trials cost almost 50 percent more than trials where life without parole is sought. Similar findings have been made in Washington, North Carolina, Indiana, Florida, Kansas and Texas.

The death penalty is a failed government program for many reasons. One is that it is a colossal waste of government resources. Since 1977 we've carried out over 1,100 executions in this country to the tune of what is conservatively estimated over $1 billion. We would have been far wiser using this money to meet our many pressing needs, such as improving our schools, building safer communities, fixing our deteriorating infrastructures, shoring up our social security system, providing health insurance for children, etc....

Many [of the more than 3000 death row] prisoners will die of natural causes before they can be executed. It would be far cheaper to commute these sentences to life without parole than to continue this failed policy of state killing.... The death penalty is a bankrupting policy. Let's abolish it.

I have long thought that the economic case against the death penalty is the strongest and also one that ought to appeal to both sides of the political ailse. Put simply, there is an extraordinary amount of big government bureaucracy that surrounds each and every capital case. Though some will argue that the psychic benefits of capital punishment outweigh the real economic costs of running the system, few can make a strong claim that modern capital punishment schemes are either efficient or effective from an economic perspective.

Unfortunately, this op-ed makes the tired liberal pitch that the money now spent on the death penalty could be used for other social programs. I think a more effective pitch would be to say that the money now spent on the death penalty could and should be used on other more efficient and effective means of saving innocent lives by, e.g., by putting more resources into reducing drunk driving and other avoidable traffic deaths, by improving funding for urban police forces to better deal with violence on the streets, by being more willing to invest in crime-fighting innovations (like GPS tracking, perhaps) that can help monitor and control those offenders in the community most likely to commit violent crimes.